Everything you need to know about settlement agreements (almost!)

Settlement agreements (formerly known as compromise agreements) state that in return for a payment, you give up your right to bring claims against your employer at the employment tribunal or in the courts.

Settlement agreements are individual contracts between you and your employer. As such, the content of a settlement agreement is not set in stone and there is absolutely no standard way to do them. There are certain minimum contents set out by statute, such as it must be in writing and signed by an independent advisor, but the money element is often open to negotiation.

Solicitors to sign your settlement agreement

There is legislation in place which says that a settlement or compromise agreement must be signed by an independent solicitor, covered by a contract of insurance. This is in order to make the settlement agreement legally binding upon you.

The government decided that in order to protect the employee, an independent solicitor should have to explain the agreement to them. This is so that they fully understand that they are signing away their right to go to an Employment Tribunal. A settlement agreement will be legally binding if it is signed by you, your employer and you also receive independent legal advice from a solicitor or barrister as to its terms and effect. 

A good solicitor will also be able to answer any questions you might have and give you valuable advice on the terms of your Settlement Agreement.

You usually pay nothing for advice from a lawyer on the agreement, because it is standard for employers to pay the legal fee of having the document signed. 

However, if your lawyer accesses that your settlement agreement should be offering you more, based on the details of your case, they will explain this to you and offer to negotiate with your employer on your behalf. This additional service would require a separate fee to be paid by the employee, which in the majority of cases this is costed as a small percentage of the increase in the settlement amount

We see hundreds of settlement agreements and can tell you whether yours contains any unusual clauses in the small print, or doesn’t maximise potential benefits to you. If anything sounds strange or unfair to you, do not be afraid to ask your solicitor questions and have them advise you on what could be done as part of the initial settlement agreement assessment.

We at Monaco Solicitors passionately believe in going through all the possible outcomes with you in detail, all as part of the service. Why? Because we are specialist employment law solicitors and want to empower employees.

Settlement Agreement Payment: Checklist

The agreement should clearly state how and when the payment(s) will be made and when your employment will end.

Check the agreement for all of the following:

• All outstanding salary
• Any expenses owed
• Your contractual notice, or statutory notice if that is greater
• Holiday pay
• Car allowance
• Bonus payments
• Pension payments

Consider non cash benefits:

• Company car
• Health insurance and life insurance, is there the option for these to continue?

What deductions, if any, will be made:

• Some employers ask for contractual maternity pay to be repaid if you leave before a specified amount of time has passed after your return to work (normally around six months).
• do you have a season ticket loan or any other loans with your employer?
• Have you taken more holidays than that you will have accrued at the end of your employment?

When should I expect payment?

Payment dates are normally around 14 to 28 days after signing the settlement agreement or after your last day of employment, whichever is the latest.

A decent advisor will ensure that the payment mechanism is stipulated within the Settlement Agreements itself, in terms of both the payment date and also any payment method you prefer if its not the bank account into which your salary is paid.

Usually your settlement money is usually paid out within 14 to 28 days after signing the settlement agreement or after your last day of employment, whichever is the latest.

Some organisations tend to process payments in the relevant monthly payroll. We would generally try to ensure a shorter payment date, but anything up to a month is standard.

In some cases, our solicitors have been known to get payment from your employer within 24 hours of signing the settlement agreement. We know how keen clients are to move on to the next chapter of their working lives, and that employers want a clean amicable break.

Settlement Agreements Tax: a Summary

What can usually be paid free of tax (“gross”):

• Compensation for loss of employment up to ￡30, 000.
• Payment of legal costs
• A payment for injury to feelings caused by discrimination or personal injury during your employment.
• It can be tax effective to have a payment made into a pension

What payments in a settlement agreement are taxable?

• Salary
• Holiday pay
• Compensation for loss of employment over ￡30, 000.00
• A payment in lieu of notice whether or not your contract contains a PILON clause. Please refer to our article on the tax updates to settlement agreements for more information on this.
• A payment for a restrictive covenant. If your employer wants you to enter into new covenants it is important you get specialist advice on the level of compensation offered; there may be tax implications if HMRC later consider the amount paid too low.

What is a tax indemnity?

Employers usually ask for one of these and they are a standard clause in most settlement agreements. If, after the agreement is signed, HMRC deem that tax is due on a payment made to you they will look to your employer to pay this tax. The indemnity means that you have promised to pay this money back to your employer and if you don’t pay your employer can sue you for this money.

Read more detail in our article on tax.

Other clauses and factors to look for in a settlement agreement:

Pensions

Whatever your age it is very important to consider your pension, but particular care should be made if you are nearing retirement. The following should be considered:

• Will pensions payments continue after your employment has ended?
• Will a lump sum be paid into your pension?
• Do you have all the information, documents and contact details (of your pension provider) from your employer about your existing pension?
• Does the payment in the settlement agreement adequately account for any loss of employer pension contributions and pension rights?

Shareholders/share options

• If you hold shares you should check your shareholders’ agreement. You may be required to sell back shares on your employment ending.
• Check the share option scheme and what it states about leavers, it may be important that you do not leave as a “bad leaver” or as someone who has left with “cause” and if the share options are valuable to you it should be stated within the settlement agreement that you leave as a “good leaver”. Ask the employer to confirm and in any event ensure you know what will happen to your share options.

Bad-mouthing

Employers often ask the employee to agree not to “bad mouth” the employer. There should be a reciprocal clause in which they agree or use their best endeavours to ensure that they and their staff do not “bad mouth” you.

Confidentiality

Employers often want the terms and existence of the agreement kept confidential. Ensure you don’t promise retrospectively if you have discussed your problems at work. Where possible try to be discreet regarding who knows that you are in negotiations with your employer, in that way if you are asked to warrant that you haven’t discussed the issues you will not be in difficulty. Employers usually agree that confidentiality can exclude your immediate family, professional advisers and prospective employers.

Personal injury & pension rights

While the settlement agreement is likely to state that you give up all your claims, there are some exceptions which should never be given up. These are:

• A claim for a hidden personal injury claim where you are unaware of it or of facts that might give rise to a claim. e.g. if you were in contact with a substance at work that was believed to be harmless but many years later caused severe disease, you would still be able to bring a personal injury claim.
• Claims for accrued pension rights – your pension is always protected and can’t be settled.

Out-placement

Some employers offer outplacement services as part of the settlement agreement and in addition to the payment. It consists of specialist support looking for work that can include career counselling, CV writing and interview preparation. It can be excellent and it is worth asking your employer to include this particularly if you are being made redundant by an organisation that has employed you for a long time.

References in settlement agreements

A reference often forms part of the settlement agreement, and it is certainly worth including. Some employers will only confirm dates of employment and duties whereas others are willing to comment favourably on an employee. What is agreed will depend on the employer’s usual practice and the circumstances surrounding your departure. There is no obligation on any employer to provide a reference and it is one of the advantages of settling a case that a reference can be agreed as part of the settlement agreement.

Welfare benefits

After your employment has terminated you may be able to claim Job-Seekers Allowance (JSA). If you want to claim JSA the reason for leaving should be carefully considered and where appropriate be labelled as “redundancy” as there is a risk if the agreement says you resigned the Department for Work and Pensions (DWP) will not pay you. It is worth making a claim if you meet the eligibility criteria as for the first six months JSA is not means tested. Check with the DWP for more information and any recent changes in their criteria.

Depending on your situation you may be entitled to other benefits and you should check with the DWP to see if you are entitled to other benefits e.g. housing benefit, council tax benefit, tax credits

If you are long term sick or disabled you may be entitled to claim incapacity benefit and/or disability living allowance or its equivalent. Again, do gain check with the DWP.

Mortgage/income protection insurance policies

If you have an insurance policy that will pay your mortgage or replace some or all of your income upon redundancy/dismissal it is essential that you check out the terms of your insurance policy before you sign any settlement agreement. Some policies will only pay out if you have been dismissed or been made redundant. This means that if appropriate the agreement should make clear that the termination was dismissal and/or redundancy.

Protected conversations

If your employer wants you to leave in theory they can discuss a settlement agreement with you, sure in the knowledge that even where there is no existing dispute you cannot rely on the discussion in later litigation and/or as a breach of contract.

However, these protected conversations only apply to unfair dismissal cases, so if your case involves something else such as discrimination or breach of contract the conversation will not be protected. You may then be able to rely on it in litigation.

If you have been invited to a settlement agreement discussion, take careful notes, ask for any offer to be put in writing and get canny and early advice on that offer.

Still not sure whether you should sign your Settlement Agreement?

If your employer has offered you the option of signing a settlement agreement rather than just dismissing you and leaving you to claim your statutory and contractual entitlements, this is a often clear sign that you have the ability to do something your employer is desperate to prevent, such as bring a claim or leak trade secrets. 

You are therefore in an advantageous position and should be well-placed to negotiate for a better settlement. If you’re not confident about your negotiation skills, get a professional to negotiate on your behalf.

If you leave without signing a settlement agreement, then you will not receive any ex gratia payment from your employer. You will only be entitled to receive any statutory redundancy pay and any contractual benefits. Your contractual entitlements are sacrosanct – an employer cannot take these away from you. These include notice pay, holiday pay and any salary outstanding. Of course you will be entitled to make an employment tribunal claim.

Next steps

If you want to talk to Monaco Solicitors about your work situation, including your next steps and whether you deserve a better deal, just get in touch on 020 7717 5259 or request a free no obligation 15 minute consultation.